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North New Georgia Timber Corporation v Peloko [2011] SBCA 16; CA-CAC 11 of 2011 (25 November 2011)

JUDGMENT OF THE COURT
(Ruling on Application)

1. This is an application by Ms Tongarutu on behalf of a logging company, North New Georgia Timber Corporation ("NNGTC") to appeal out of time against the order of Chetwynd J on 23rd May 2011 ordering NNGTC to account to and pay royalties to two Tribal Leaders, Tutuo and Lasi Peloko in respect of logging activities from 1996 to 1998.
   
2. When the matter came before Chetwynd J the two Tribal Leaders were represented by counsel, but no-one appeared for NNGTC. Notwithstanding adequate notice of the hearing, NNGTC gave no notice to the Court or to the Tribal Leaders that it would not be represented or attend, and subsequently did not explain its non-attendance.
   
3. Chetwynd J decided to hear the matter, and considered evidence in support of the Tribal Chiefs' claims for royalties in the form of oral evidence, three sworn written statements and a "Court Book" and other documents. On that evidence he awarded the tribal Chiefs $5,294,379, plus interest at the statutory rate.
   
4. Ms Tongarutu appears today for NNGTC. She was not instructed at the time of the hearing before Chetwynd on 23rd May 2011, but only on 2nd June, nine days into the 30 day statutory limitation period for appeal. From the material she has put before the Court and from her submissions this morning, she knew on receipt of instructions that the NNGTC wished to challenge the Judge's award as too high. More particularly, she knew that their belief and concern was that not all relevant evidence and materials were before him when he calculated and made the award of $5,294,379.
   
5. However, apart from writing to NNGTC's former counsel on 16th June requesting its case file (to which she received no response), she, on her own account to the Court, made no further resolute efforts until much later to secure the missing documents which she says would advance NNGTC's appeal. She mentioned further oral communications with the previous counsel and the Court of Appeal Registry – but nothing in writing. In the meantime the remainder of the 30 day period was ticking by. Ms Tongarutu clearly had enough information from NNGTC by mid-June at the latest to draw, file and serve a notice of appeal setting out in outline NNGTC's case for appeal, even if it might later call for amendment with the leave of the Court.
   
6. However, the most serious obstacle to the application is that at its heart lie complaints of serious professional negligence on the part of NNGTC's previous counsel in the proceedings before Chetwynd J. It is a trite rule governing any complaint of that sort as a basis for appeal that timely and adequate notice of it must given to the previous counsel concerned, so as to give him or her an opportunity to controvert or otherwise explain the allegations sought to be relied on before the Court of Appeal. Without such balance of evidence being put before the Court it cannot properly assess the extent to which, if at all, the conduct complained of may affect the validity of the order the subject of the application for leave to appeal.
   
7. Ms Tongarutu, when pressed by the Court, acknowledged that she had not written to previous counsel setting out the complaints on which she seeks to rely in challenging Chetwynd J's order. She claims to have spoken to them about it once or twice, and asserted that they knew or must have known broadly what she had in mind. So, here we are, nearly five months following the expiration of the 30 day period for appeal, still without any basis on which we could exercise our discretion to grant an extension of time. Ms Tongarutu has not put before us any adequate reason for the delay. Nor has she - nor can she given her failure properly to notify previous counsel of complaints against them going to the heart of the putative appeal – demonstrate probable merit in the sought appeal.
   
8. Accordingly, the Court refuses, North New Georgia Timber Corporation application for leave to appeal out of time, with costs to the Tribal Leaders
   

Sir Robin Auld
President

Sir John Hansen, JA
Member

Gordon Ward, JA